Ganganapalli Moorthanna vs Ganganapalli Chinna Ankaiah and others

Sambasiva Rao, J.—The principal question that arises for decision in this appeal is whether Trust-created by a Hindu for repairs, maintenance and worship at the tomb of a Muslim Saint is valid and can be enforceable. It is the important contention raised on behalf of the 1st defendant who is the appellant in the appeal. It arises out of O. S. No. 18/1969 on the file of the Additional District Judge''s Court, Cuddapah. Six persons filed the above suit for declaring that the schedule mentioned properties are the trust properties relating to the Trust created by Gangannapalli Kotamma by her will dated 20th of March 1930 and for delivery of possession of those properties to them who claimed to be the present trustees. The properties are two terraced houses in ward No. 9 of Proddatur town.

The material averments in the plaint are:--

By and under a will dated 20th of March, 1940 (Ex. A-3) Ganganapalli Kotamma endowed the above said two houses and land of the extent of Act. 12-90 cents for repairs, maintenance and worship at the tomb of a Muslim Saint by name "Nemalladinne Hussain" near Mirzampalli village. The trust was to come into effect after her death. She named three persons as trustees and authorised them to take possession of the properties and utilise the income therefrom for the aforesaid purposes relating to the tomb. She authorised the trustee to nominate their successors by a majority decision, In case these named trustees do not discharge their functions properly, the eiders of ''Gandla'' community of Proddatur (to which she belonged) or majority of them should administer the endowment. However, on 21st of June, 1956 by a gift deed, Ex. B-4 she gifted away the land of Act. 12-90 cents which formed part of the endowment, on the tomb to her sister Subbamma. She died in 1931. But before she died, she had banded over the two houses to one Hussain Miah, the son of the Saint who was looking alter the tomb. Nothing, which appears on record, happened till 1954. The trustees named in the will of Kottamma had died, but without nominating their successors. So, on 1-11-64 elders of the ''Gandla'' Community assembled and resolved to appoint five trustees who included D-1, D-4, plaintiffs 1 and 2 and one Kondamma since deceased. Nine elders of the community signed this resolution. In the same year defendants 2 and 3 who are the sons of Hussain Miah and who were looking after the tomb after the demise of their father, attempted to alienate the two houses to one Pedda Narasimhulu, Immediately the five trustees appointed by the ''Gandla'' community issued two notices dated 3-12-1964, Exs. A-5 and A-6, the former to defendants 2 and 3 and the latter to the proposed purchaser, challenging the validity of the attempt to sell the two houses. Patently on account of this, this proposed sale was not proceeded with. Evidently the five trustees continued to be in office. On 18th January, 1968 D-1 purchased some lands. Under a deed dated 24-1-1968, he exchanged these properties with the suit houses by entering into an exchange transaction with defendants 2 and 3. Defendants 2 and 3 described the mselves as being in possession of the two houses as Archakas of the tomb. The 4th defendant was an attestor on the exchange deed. This action on the part of the 1st defendant supported by the 4th defendant provoked the elders of the Gandla Community who again met on 28th of January, 1968 and revolved to remove defendants 1 and 2 from the trusteeship. The copy of the resolution is Ex. A-13 and as many as sixteen signed the resolution, On 3rd February, 1968 there was another resolution of the members of the com inanity, Ex. A-2, this time signed by 22 persons, appointing the prevent plaintiffs as trustees. After going through the necessary formalities like issuing a notice to the defendants on 15th March 1968, the plaintiffs filed the present suit on 5-7-1968. They rested their claim on the provisions of the will.

There were seven defendants of whom defendants 1 and 4 were the former trustees. Defendants 2 and 3 are the sons of Hussain (sic) the grandsons of the Saint who exchanged the suit properties in favour of the 1st defendant. Since the 2nd defendant died pending the suit, his legal representatives were added as defendants 5 to 7.

The principal contest came from the 1st defendant which was supported by the third defendant. The 2nd defendant died and his legal representatives defendants 5 to 7, were absent and set ex-parte. His main contentions were :

(1) The dedication was unlawful, for a Hindu cannot dedicate property to a tomb under his personal law much less to a Muslim tomb.

(2) The trust as created by the will is void for uncertainty :

(3) The will became inoperative in view of the subsequent acts of Kotamma ; and

(4) In any case the exchange was for the benefit of the tomb as the houses had became very old and were not fetching any income, which the exchange brought income-fetching lands instead.

The trial Court repelled all these contentions of the defendants and upheld the claim of the plaintiffs. It held that the dedication is valid that the will is not vague, that the exchange is not beneficial to the trust and that the 1st defendant is estopped from questioning the validity of the trust, because he had agreed to function as a trustee from 1-11-1964 and in fact issued registered notices, Exs. A-5 and A-6 to defendants 2 and 3 and the then intended purchaser. In the result, it decreed the suit by declaring the plaint schedule properties as trust properties relating to the trust created by Kottamma tinder her will and directed the defendants to deliver possession of the properties to the plaintiffs as the present trustees Costs were also awarded to the plaintiffs.

Sri A. Gangadhara Rao urges before us four points in support of the appeal brought by the 1st defendant.

They are :

(1) The dedication by a Hindu to a tomb is void as it is opposed to

Hindu religion.

(2) The will is very vague and so, the trust is unenforceable.

(3) The subsequent acts of Kottamma nullified the dedication and nude the trust inoperative

(4) The lower Court is wrong in thinking that the 1st defendant was estopped from questioning the validity of the trust.

We will do well by disposing of in the first instance points 2 and 3 taken by the learned counsel. The contention that the will is void for uncertainity is two-fold. Firstly, it is said, that the three trustees named in the will failed to nominate their successors. The will did not provide for such an eventuality So, the will is uncertain in this respect. Secondly the reference to the elders in her community is vague and uncertain. P.W.1, the 1st plaintiff, the himself stated that there were as many as 100 houses belonging to the Gandala Community in the town of Proddatur. What was the procedure to ascertain who the elders were. This was not stated in the will Thus, the continuance in the management of the trust contemplated by the will was rendered vague and uncertain. To illustrate this feature, Sri Gangadhara Rao points out the varying numbers of persons who signed the three resolutions, Exs. A-4, A-13 and A-2. Such an argument, in our view, ignores the basic intention of the testarx which runs throughout the will and is manifest in every provision made therein. It is that the properties which she was bequeathing for the purpose of rendering services at the tomb should be utilised for that purpose and that they should be carefully managed. The testatrix provided for very many contingencies. In the first place, she nominated three persons who should manage the properties. She provided that the trustees should take their decisions by majority opinion. She gave details of the manner in which the income should be utilised for the purposes of the tomb. She took care to empower the three named trustees to appoint their successors, once again by a majority vote. Next follows a very crucial clause. She clearly provided that;"

In case the said three trustees fail to perform the said duties and neglect the same and in case for some reason or other they forfeit their positions of trusteeship, as per the resolution that may be passed by all the elders in our Community living by then in Proddatur or by a majority of the members, the Pooja etc., to the Samadhi of the aforesaid Hussain Guru shall be got duly performed (This extract is taken from the translated copy of the will placed before as by the learned counsel for the appellant).

It appears to be common ground that the three named trustees had died without nominating their successors. They were enjoined under the will to appoint trustees who should come into arrangement after them, by a majority decision. The function they failed and neglected to discharge and such neglect certainly comes within the four corners of the provision that the elders of the community should step in when the three named trustees failed to perform their duties and neglect them. Even if for some reason or the other the said trustees lost their positions of trusteeship, even then the elders of the community could step in. Obviously Kottamma, when she made these provisions, was anxious that the trust should be carried on whatever might be to the vicissitudes of the future and so provided for all eventualities. Instead of finding any vagueness or uncertainly in these provisions we see great clarity and dsfiniteness in them. We are convinced that the will does not suffer from the defect pointed out by the learned counsel for the appellant. Equally untenable is the other part of the argument as to the vagueness of the elders of the community. Anybody who is acquainted with the life of the village as it was in vogue in 1930 when the will was executed would know that practically every caste had its own elders who would generally look after the interests and affairs of their community. Apart from that, even if there were no specific elders of any community, there would be some recognised elders. It should not be forgotten that Kottamma, while making this provision was creating a trust for all times to come and by the very nature of things could not be more specific, while referring to the future arrangements. She wanted that the elders in her community should step in whenever there was a failure in the proper management. She further took the precaution of saying that either all the elders or a majority of them should safeguard the interests of the trust. Such elders should belong to her community who were at the particular time living in Proddatur. Though indeterminate the number of the elders might be and it is impossible to categorically postulate for the future, the testatrix gave enough indication of the constitution of the assembly which should decide the future course of events. It is not, therefore possible to hold that the will is uncertain in regard to the numbers of the elders and for that reason the trust should be held to be unenforceable, despite the testatrix demonstrated anxiety to enforce the trust in all eventualities. Indeed we find from the evidence that the elders of the community, though varying in numbers from occasion to occasion, acted under the provisions of the will and made necessary decisions to continue the management right upto 1968. They passed a resolution in 1964 appointing defendants 1 and 4, plaintiffs 1 and 2 and Kondamma as the trustees. Then when defendants 1 and 4 betrayed the trust they removed them by a resolution dated 28-1-1968 Ex. A-13. Immediately thereafter they appointed on 3-2-1968 under Ex. A-2 the present plaintiffs as trustees. This practice clearly demonstrates that the elders of the community did not surfer from any uncertainly or vagueness in the provisions of the will indeed the 1st defendant appellant was one of the trustees appointed in November, 1964. From the provisions of will it is also seen that when the elders of the community came upon the scene, the number of the trustees which they could appoint was not limited. The freedom in regard to the numbers of the trustees was given to the elders. We have, therefore no hesitation in repelling this argument put forward on behalf of the appellant.

The next point we will consider is that on account of the subsequent conduct of the testatrix of the will and the trust were nullified. It is pointed out that three months after the execution of the will the testarix herself executed, Ex. 4 on 21-6-1930 gifting away Ac. 12-90 cents of land to her sister which she had under the will made part of the trust. This was a substantial portion of the property and when that was taken away, it could only mean that Kottamma did not want the trust to be created or continued. The two houses which remained are in Proddatur and cannot by any stretch of imagination be an insignificant part of the property. That house property remained unaffected by any other bequest by the time of the testatrix''s death. As per the provisions of Section 159 of the Indian Succession Act, the legacy is admeemed so far as regards that part of the stock which has ceased to exists. The bequest and the trust would certainly be in force in regard to these houses after the death of Kotamma, since she did not make any bequest in regard to them. On the other hand she herself handed over the two houses to Hussain Miah the son of the Saint who was then looking after the tomb. That would show that she was anxious that the two houses should be utlised for the purposes for which she had made the bequest under the will. However, Sri Gangadhara Rao seeks to utilise this circumstances of handing over the houses to Hussain Miah as a pointer towards Kotamma giving up the idea of the trust and that the three named trustees should be in management as trustees. In the result, it is said, there was no trust on her death to be carried out. Exs. A-10 to A-12 which are extracts from the Municipal Property Tax Register are relied on to show that the houses were registered in the name of Hussain Miah. A registered agreement Ex-5 dated 15th may, 1955 executed by a neighbour of one of the houses examined as D. W. 1 in favour of defendants 2 and 3 is also referred to for showing that defendants 2 and 3 were in enjoyment of the two houses after the death of their father. Reliance is also placed on a statement of P.W.1, that till 1968 defendants 2 and 3 were collecting rents from the houses. In the first place, all these acts and conduct would show that the houses were clearly intended as endowments for the benefit of the tomb. In other words, the principal purpose of the trust was being carried on in respect of these two houses right upto the date of the suit. It may be that Kotarama handed over the two houses to Hussain Miah during her life time. From the recitals in the will it is seen that she was suffering from tuberculosis and was apprehensive that she might die any moment on account of dreadful disease. So, it might be that she wanted the son of the Saint to look after the houses when she was alive, and with that intention might have handed ever possession to him. It should also be borne in mind that Hussain Miah, being the son of the Saint, was looking after the tomb and after him his sons defendants 2 and 3. There is no wonder, there, fore, in Kotamma entrusting Hussasn Miah with the custody of the houses when she was alive. After Hussain Mian''s death defendants 2 and 3 happened to look after the tomb and probable in that capacity they were also looking after and collecting the rents. The three persons named as trustees in the will were the previous trustees. He did not know who were collecting the rents prior to 1951 though he says defendants 2 and 3 were doing that work since 1951. The trustees named in the will were visiting item No. 1 now and then when one Nirasimulu tried to purchase item No. 1 from defendants 5 and 3 there was tom tom in the town warning intending purchasers not to purchase the same. This statement clearly establishes that the trustees named by Kotamma did enter upon office and discharge their functions at least until the execution of Ex. B-5 in 1955, perhaps by that time the three trustees died and so defendants 2 and 3 and their elder brother were described as temporary trustees. This adjective ''Temporary'' is very meaningful which can only indicate that they were not the actual trustees. On the other hand the 1st defendant examined as D.W. 2 states that the named trustees managed the suit houses. This should be rejected summarily because it is contrary to the evidence of it own witness D.W.1. He admits that along with others he issued Ex. A.6 notice to Narsimhulu who intended to purchase item No. 1 from defendants 2 and 3. He admits that he signed Ex. A-6 after reading and that its contents are correct. His statement that with the permission of the original trustees defendants No. 2 and 3 were collecting rents and rendering services destroy all his argument in this be half. This admission on his part removes all doubts, if any, and proves that the trust came into operation after the death of Kotamma. The named trustees entered upon their duties and defendants 2 and 3 were merely acting as their agents and rendering service. All this clearly demonstrates that the subsequent events instead of nullifying the will and the trust, support them and establish the fact that the trust, as contemplated by Kotamma, was carried on. The further fact that the 1st defendant agreed to be a trustee as per the resolution of the elders of the community dated 1-11-64 would support this conclusion. Therefore, this argument on behalf of the appellant is totally devoid of force.

Now coming to the principal contention that the dedication by a Hindu to a Muslim tomb is unlawful for the reason that under the Hindu Law a person following that religion cannot dedicate property to a tomb, the legal position is now settled by the decisions of the Supreme Court in Saraswathi Ammal and Another Vs. Rajagopal Ammal, corresponding toV Saraswathi Ammal and Another Vs. Rajagopal Ammal, and Sundara Kothanar v. Sellam Pillai 1969 (1) S.C.W.R. 669 The Supreme Court held that a perpetual endowment of property for the purpose of Samadhi Kainkaryam i. e., worship offered at the samadhi (tomb) of a person was not valid under the Hindu Law In view of this categorical declaration of the law by the Supreme Court, it is not necessary to refer to the other decisions on the point Thus, if we go by this legal principle alone there is no doubt that a Hindu cannot make an endowment for the worship at a tomb. Reliance is placed on a passage of the learned author Ameer Ali at page 200 of Volume 1 of his book on Mohammadan Law (Fourth Edition) which says;

Any person of whatever creed may create a wakf but the the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines. Divine approbation being the essential element in the constitution of a wakf, if the object for which a dedication is made is sinful, either according to the laws of Islam or to the creed of the dedicator, it would not be valid.

Learned Counsel for the appellant relies on Mst. Mundaria and Others Vs. Rai Shyam Sundar Prasad and Others, and Kassimiah Charities Rajagiri Vs. Madras State Wakf Board, which accepted this statement of the legal position by Ameer Ali Sri. Y. G. Krishna Murthy for the respondents, however, argues that there is no support for Ameer Ali''s proposition and it is not rested on any decided cases or religious treatises. He points out that neither in Mst. Mundaria and Others Vs. Rai Shyam Sundar Prasad and Others, nor in Kassimiah Charities Rajagiri Vs. Madras State Wakf Board, the laying down of this proposition was necessary and as far as these decisions are concerned, these observations were mere obiter dieta. We should, however, follow the law laid by the Supreme Court according to which a trust created by Kotamma in favour of a tomb for its maintenance and for worship thereat is not legal.

But the position does not rest there. Even if it was not valid when it was constituted, the fact remains that it was enforced and carried on right upto the date of the suit, that is to say, the trust was in force and in existence as on the dale of the suit. What is more, the appellant before us was one of the trustees appointed by the Community of Kotamma by a resolution dated 1-11-1964. He not only agreed to become a trustee, but he discharged some functions in that capacity. He along with the other trustees, appointed on 1-11-1964, issued Ex. A-5 and A-6 on 3-12-1964 notices to defendants 2 and 3 on the one hand and to the intending purchaser on the other when a sale of one of the houses was proposed to be sold by defendants 2 and 3. Thereupon, the sale was dropped. Evidently till 28th of January. 1968 the 1st defendant and the other four trustees appointed by the elders continued in office. On 24th January, 1968 the 1st defendant exchanged some lands of his which he had purchased under Ex. B-2 on 18-1-1968 with the suit properties from defendants 2 and 3. It is very important to note that in that exchange deed the 2 suit houses were described as being in possession of defendants 2 and 3 in their capacity as Archakas. The 4th defendant was an attestor on the exchange deed. This description would clearly show that defendants 2 and 3 have no other capacity than that of Archakas and that there were other trustees. By virtue of this exchange, the 1st defendant derived a benefit by getting the suit properties which are situated in the Municipal town of Proddatur. When he, in collaboration with the 4th defendant, was found to be acting contrary to the interests of the trust, he was removed from the office by the elders by resolution dated 28-1-1968. Because of this conduct, the lower court held that the 1st defendant was estopped from setting up the present defense. It is in this connection Sri Gangadhara Rao raises the 4th contention that this opinion of the trial Court as to estoppel is wrong. He argues relying on AIR 1939 201 (Privy Council) Kalidas Dhanjibhai Vs. The State of Bombay, and A. Muthuswami Ayyar and Another Vs. P.B. Loganatha Mudali and Others, that there cannot be any estoppel against law. That is a well established rule of law and there is no gain-saying anything against it. But we fail to see in this case how it is tantamount to pleading estoppel against law. Learned Counsel suggests that difficulty arose on account of the 1st defendant understanding the terms of the trust deed and its legal implications. If he understood the trust deed and its legal effect in a particular way and acted on the basis of that understanding. He cannot be later prevented by saying that his understanding of the legal position was wrong. This reasoning is wholly untenable in our view. The 1st defendant never understood the terms in the will and the nature of the trust as being void and unenforceable. On the other hand, as the circumstances above mentioned make it plain, he and all others who were concerned with the properties thought that they were constituted as a trust for the benefit of the tomb and acted accordingly. He agreed to be a trustee till 1968 and prevented the intended sale by defendants 2 and 3 by issuing notices. Later he committed Volte-face and obviously with the intention of gaining two valuable houses in the Municipal town entered into an exchange deed thereby getting at the trust properties. When it is argued that he cannot now turn round and say that there was no valid trust, what is pleaded is not an estoppel against law, but a against his conduct then and now. Therefore, we are in agreement that the 1st defendant is estopped from raising the present contention and hold the 4th point also against the appellant.

However, this does not completely solve that problem. The respondents have brought the suit claiming the enforcement of the trust and for possession of the trust properties and so it is for them to show that a trust in fact and in law existed as one the dated of the suit. The plea of estoppel would help them to defeat the 1st defendant only when they establish this preliminary and basic position. What has been discussed above shows that though the endowment or trust created by Kotamma under her will was invalid under her personal law, nevertheless, it was acted upon right upto the date of the suit. Each set of trustees managed the two houses and defendants 2 and 3 were collecting rents only on behalf of the frustees as admitted by the 1st defendant himself as D.W. 2. The conclusion is therefore irresistable that the trustees constituted as per the provisions of the will were in legal possession of the two houses from 1931 when Kotamma died right upto 1968 and that possession was on behalf of the trust. They were in possession for nearly 37 or 38 years on behalf of the trust and in their capacity as trustees to the exclusion of heirs of Kotamma and every body else that is to say, the heirs of Kotamma cannot now claim the properties and the trustee have acquired a possessory title against any other possible claimant and to the properties. This possessory title is that of the trust though the endowment, to start with, was invalid and void. In other words, the title of the trust now rests not so much on the provisions of the will, but on the possessory and adverse title acquired for its benefit by continuous and uninterrupted possession its trustees have acquired for over the statutory period. Thus as, on the date of the suit the trust was legal and valid, What ever might have been its infirmity to start with. No person, much less the 1st defendant who had been a trustee, can now question the legality of the ownership of the trust of these two houses.

We are supported in this view by observations of several decisions. We will start with two Privy Council decisions. In Srinivasa Murthy v. Venkata Varada Aiyangar ILR 34 Mad. 257 the son of the deceased was the executor and trustee named under the will also the sole residuary legatee. He obtained probate under the will and took upon himself the management of the estate and all its assets. For some years he acted in execution of the trusts of the will. When he was called upon to account for the moneys of the trust, he asserted that the will was wholly inoperative and that the entire estate was joint family property and devolved on him by right of survivorship. The privy Council opined that to such a content on it would be a sufficient answer to say that no person who had accepted the position of trustee and had acquired property in that capacity can be permitted to assert an adverse title on his own behalf until he has obtained a proper discharge from the trust with which he has clothed himself. The other Privy Council decision is AIR 1942 61 (Privy Council) In that case a charitable trust was created under a will and it was void for uncertainty. It was, however, found that the executor of the will had himself by his conduct dedicated the property to the charity and that after 12 years adverse possession the title to it had vested in the charity. It is thus clear from the decision of the Privy Council that though the trust was initially void when it was acted upon fore more than 12 years the property would vest in the charity by virtue of the title that arises out of adverse possession. Relying on these Privy Council decisions a Division Bench of the Bombay High Court consisting of Beaument, C.J., and Kama, J., (as he then was) held in Fazlhussein Sharafally Vs. Mahomedally Abdulally Sassoor, hat even though the wakf was void because of reservation of a life interest in favour of the settlor, the trustees in possession under that void trust would acquire a good title by adverse possession as against the settlor and those claiming under him. The trustees acquire a possessory title against those claiming under the trust resulting form the invalidity of the charitable trust since a claim under such resulting trust in a claim adverse to the deed. The learned Judges further held that "a trustee who enters into possession n of property ostensibly on trust subsequently ascertained to be void cannot however retain the property for himself when the claim of the settlor and his heirs has become statute-barred. A trustee is not entitled when asked to account by his beneficiaries, to challenge the trust under which he holds until he has obtained a proper discharge from the trust with which he has clothed himself. It is immaterial whether the trustee challenges the settlement on the ground that the settlor did not possess the property which he purported to settle, or on the ground that the settlor did not possess the power to create a settlement which he purported to create. Following the above Bombay decision, a Division Bench of the Punjab High Court held in Balkrishan Das v. Parmesuri Dass AIR 1963 Pun. 187 that.

There is nothing unusual in the properties of the she bait being held by the trustee, for the benefit of the institution. Where the shebait had agreed to his powers beings trimmed by the managing committee consisting of the trustees a person who had acted as a trustee for many years cannot subsequently seek to unsettle the position which had obtained for may years during which many and varied acts had been done by the trustee as the president of the trust, by saying that the trust was invalid from its inception, and its terms were unenforceable and that the she bait was not competent to create the trust. A trustee cannot challenge the validity of a trust in a suit brought by a beneficiary should not be allowed to do so in an action brought by the co-trustees for accounts.

A division Bench of our own High Court consisting of Gopalarao Ekbote, J (as he then was) and A.V. Krishna Rao, J); were considering a similar case in L.P.A. No. 5/1970 dated 10-9-1971 where a Hindu made a grant for the performance of Moharrum festival. Gopal Rao Ekbote, J., speaking for the Bench dealing with this question observed:-

Even if it is assumed that such a purpose is unlawful according to the Hindu tenents, even then the wakf has become perfectly valid because after the death of the dedicator, his heirs continued the wakf property to be used for that purpose. Even though the wakf originally may be invalid, but because it was not questioned by the successors of the dedicators, may be they continued it and since the property was used for that purpose, the wakf became valid by user.

These decisions fully support the view we have expressed above. It is quite clear from the above consideration that there was a trust valid to the inception of the suit in respect of the suit properties in favour of the tomb and that the 1st defendant is estopped from questioning its validity.

Before we close our consideration of the appeal, we will refer to an incidental aspect, which arises out of certain observations in Fazlhussein v. Mohamedally AIR 1948 Bom. 366 and Saraswathi Ammal and Another Vs. Rajagopal Ammal, White holding that the trustees had held the property on the trusts of the settlement, Beaument, C.J. observed in the former case that :

Now, those trusts are not invalid on any considerations of public policy. If they were, I agree that the second ground might present much greater difficulty.

In the latter case, the Supreme Court observed that :

The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modern society.

We do not think that these observations would in any manner come in the way of trustees acquiring adverse possession for the trust. The purposes of the trust in this case can by no means be said to be opposed to public policy. A Hindu''s endowment on a Muslim tomb is, on the other hand, a positive contribution to the implementation of one of the basic foundations of the Constitution of India, namely, secularism and amity amongst different religious denominations. In the light of what we have found above, it is clear that the plaintiffs are entitled for the declaration they have sought and for possession of the plaint schedule properties. We accordingly dismiss the appeal, affirm the decision of the trial court and decree the suit costs of this appeal.